NEW JERSEY LAWYER

DAILY BRIEFING      03/09/2005


News Briefs

BILL AIMS TO END HO-HUM PRESIDENTIAL PRIMARIES
Most New Jersey voters act as though it’s a waste of time to vote in a presidential primary in June, long after the candidates have wrapped up their nomination. In 2004, for instance, just over 9 percent of eligible voters turned out for the June 8 primary. Some legislators believe the last Tuesday in February, a week before “Super Tuesday,” would be just about right. This week Linda R. Greenstein (D-Middlesex) introduced A-30, which the Assembly’s State Government Committee approved and sent to the Appropriations Committee. In the Senate, Wayne R. Bryant (D-Camden) has introduced companion S-2402. No one’s aiming to beat New Hampshire’s first-in-the-nation event, if for no other reason than that state keeps moving it up whenever another state gets too close. In 2004, the New Hampshire primary was Feb. 27. 3-8-05

PUBLIC ADVOCATE LEGISLATION ADVANCES
The off-again, on-again attempt to restore the Department of the Public Advocate as a citizens watchdog is on the move again. S-541 has passed the Senate Budget and Appropriations Committee and is in position for a vote by the full Senate. The Assembly version, A-1424, is scheduled for consideration Thursday by the Assembly Appropriations Committee. The state had a public advocate more than 20 years until Gov. Christie Whitman dismantled the office in 1994. 3-8-05

‘INNOCENT’ CAR DEALER LIABLE FOR WARRANTY BREACH
Suburban Action Motors in Danbury, Conn., had no idea the used 1994 Chevrolet Suburban it sold to Laura Ann Krack in 1999 had been in an accident, salvaged and rebuilt, but the Connecticut Appellate Court ruled it still had to pay the $9,715 in damages and $38,626 in attorney fees and costs awarded by a trial court. When Krack took the car to a Chevrolet dealer for servicing, its salvage history appeared on the dealership’s computers. Action Motors appealed, arguing it had not breached the implied warranty of merchantability and that dealers should not have to face the burden of researching the history of clean titles. “It is clear that the purpose of the implied warranty of merchantability is not to assign blame, but to assign risk and that, accordingly, fault is not an element of the plaintiff’s case for breach of that warranty,” said the court, adding, “We hold that the defendant rather than the plaintiff buyer bore the risk that the vehicle was salvaged.” 3-8-05

BOSTON ARCHDIOCESE SETTLES WITH INSURER
The Boston Archdiocese has reached a $20 million settlement with a former insurance carrier, Lumbermens Mutual Casualty Co., in a dispute over claims relating to lawsuits by alleged clergy abuse victims. The archdiocese sued Lumbermens last March, shortly after reaching an $85 million settlement with 540 people claiming the abuse. The insurer then notified Archbishop Sean P. O’Malley it considered the settlement a “voluntary payment” and therefore had no obligation to pay. The archdiocese had calculated $59.3 million of the settlement was related to periods when Lumbermens, the lead underwriting company of Illinois-based Kemper Insurance Cos., was the church’s sole insurer, and $7.7 million arose from periods when coverage overlapped with another insurer. The archdiocese is still negotiating with the other insurer. 3-8-0

COURT’S DELAY HELPFUL?
If the power of suggestion carries any weight, maybe an Italian court’s dilly-dallying will extend the life of Carmelo Cisabella, 39, who has an inoperable spine disease that developed after a motorcycle accident a decade ago left him paralyzed. Given six months to live, Cisabella turned to the court to pressure a slow-moving insurance company to fork over some $596,300 in already agreed-upon damages to ease his final months of life. The court told him to return in 14 months. 3-8-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, MARCH 8, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, MARCH 8, 2005:

TORT CLAIMS ACT
MOON v. WARREN HAVEN NURSING HOME
New Jersey Supreme Court, A-23, March 8, 2005. (20 pages). Facts-on-Call Order No. 92340

Because the trial court’s order granting the plaintiff’s motion to file a late notice of claim under the Tort Claims Act resolved only the first issue and not all issues related to the cause of action, the order was interlocutory, not final, and therefore was not appealable as of right.

THE SUPREME COURT has announced that it will release an opinion in STATE v. HILL, A-80, on March 9, 2005. The issue on appeal in Hill addresses whether the prosecutor’s comments during summation, which disparaged defense counsel and his role in the trial, required a new trial.



APPROVED FOR PUBLICATION
CONSUMER PROTECTION
GENERAL MOTORS ACCEPTANCE CORP. v. CAHILL
Appellate Division, A-2891-03T1, approved for publication March 8, 2005. (18 pages). Facts-on-Call Order No. 92341

N.J.A.C. 13:45A-28.8(d), which allows individuals leasing motor vehicles to waive the one-business-day review period under the Consumer Protection Leasing Act, is not inconsistent with the statute and is valid.

NOT APPROVED FOR PUBLICATION
EMINENT DOMAIN
BRNICEVIC v. BOROUGH OF BOUND BROOK
Appellate Division, A-3334-03T3, March 8, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17704

Dismissal of the plaintiff’s action in lieu of prerogative writs, which challenged the redevelopment plan that the defendant Borough adopted, affirmed; after extensive river flooding in 1999, the Borough declared some of its southernmost area to be in need of redevelopment, and it adopted a redevelopment plan that contemplated acquiring numerous business and residential properties; the trial court properly concluded (1) that, although a better plan might be possible, the Borough’s plan was not arbitrary and capricious and (2) that an initial development plan need not discuss in detail every planning issue specified in the Redevelopment Law, N.J.S.A. 40A:12A-7a(1)-(5); moreover, there was no merit to the plaintiffs’ claim that the Borough wrongfully withheld information from the trial court about its settlement discussions with the Justice Department.

CIVIL PROCEDURE
SACH VAN LE v. NGUYEN
Appellate Division, A-3867-03T3, March 8, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17708

Order granting the defendant’s cross-motion and directing that the plaintiff’s personal injury case was dismissed and could not be reinstated affirmed; the plaintiff’s complaint was filed on August 18, 1999 and was administratively dismissed on September 18, 2002; in the meantime, the plaintiff had been involved in another accident, and he retained his current counsel on February 3, 2003; on October 6, 2003, counsel sent the summons and complaint in this case to the Sheriff for service on the defendant; the defendant was served on November 7, the plaintiff moved to reinstate the complaint on December 3, and the defendant cross-moved for an order denying the motion to reinstate; the plaintiff did not show that the “inordinate delay” in serving the complaint was “either for good cause or attributable only to counsel’s neglect” and that it would not prejudice the defendant; neither the defendant nor his insurer had any notice of the plaintiff’s liability claim until the complaint was served six years after the accident.

PARENT AND CHILD
BORRELLO v. BORRELLO
Appellate Division, A-1429-03T3, March 8, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17705

Post-divorce-judgment orders denying the defendant ex-husband’s motion to reduce his child support payments and to eliminate or reduce his child support arrears and granting the plaintiff ex-wife’s motion to compel the defendant to pay $15 per week on the arrears and $1,500 in attorney’s fees reversed and remanded; when the parties divorced in November 2001, the defendant, who earned $40,000 per year and was engaged in other part-time employment, agreed to pay $485 per week in child support for the parties’ two daughters; that payment exceeded the amount specified by the Child Support Guidelines, but the plaintiff agreed to pay all of the children’s medical insurance costs, unreimbursed medical expenses, day care, and private school tuition; two years later, the defendant sought relief based on a reduction in the expenses that the plaintiff had agreed to pay; the trial court failed to conduct the analysis required by Lepis v. Lepis to resolve the defendant’s motion, and the defendant’s certification and exhibits established a prima facie case of changed circumstances.

PARENT AND CHILD
KAHN v. KAHN
Appellate Division, A-5334-03T2, March 8, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17707

Family Part order denying the plaintiff ex-husband’s application seeking a declaration that the parties’ oldest child was emancipated, allocating the costs for summer camp and Hebrew school, and awarding $750 in attorney’s fees to the defendant ex-wife remanded; the record lacked the “essential findings” that supported the Family Part’s decision to grant or deny the relief sought in the plaintiff’s motion or the defendant’s cross-motion; the attorney’s fee award could not be sustained because the Family Part addressed the issue “in a conclusory fashion”; thus, the Appellate Division retained jurisdiction, and it remanded the matter for specific findings of fact and conclusions of law by the Family Part.


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